at the elements of damage is resorted to when it will make no practical difference whether we say that the damage is the difference in value with and without the labor, or the cost of completion. Strictly speaking, however, the cost of completion is always a matter of evidence.

Thus where the defendant agreed to tow the plaintiff's coal from Pittsburg to Oil City, and failed to do so, and it was impossible to secure other means of transportation, the plaintiff was allowed the difference in the value of the coal at Pittsburg and at Oil City.(") The plaintiff loaned money on a mortgage of certain uncompleted houses, which the defendant covenanted should be built in a certain manner; they were not so completed. The houses were sold on foreclosure, and it became impossible, therefore, to complete them. The measure of damages was held to be the difference in value of the houses as completed and as they should have been completed, at the time the plaintiff had notice of their deficient construction; not exceeding, however, the mortgage debt and interest at that time. () And where the work of repairing a house was not done according to the contract, but the work having been completed, it would be impossible to have the errors rectified except at enormous expense, the cost of such rectification was not allowed to be shown as evidence of the difference in value between the house as it was and as it should have been.(©) Where upon the defendant's failure to perform the work the plaintiff brings suit without having the work done by another, the measure of damages has been said to be the cost of procuring the work done elsewhere. (d)

(*) McGovern v. Lewis, 56 Pa. 231.

() Norway Plains Bank v. Moors, 134 Mass. 129.

() Morton v. Harrison, 52 N. Y. Super. Ct. 305.

(4) Sillivant v. Reardon, 5 Ark. 140; Carli v. Seymour, 26 Minn. 276.

§618. DAMAGES UPON PREVENTION OF PERFORMANCE. 269

Generally, upon the defendant's failure to perform the work the plaintiff may recover the expense of having it done elsewhere, or if the consideration has not been paid in advance the difference between such expense and the contract price. This has been held in contracts to manufacture or construct, (*) to repair,() and to transport.() In all these cases the plaintiff is held to the rule of avoidable consequences. He cannot increase his damages, by unreasonably neglecting (in a proper case) to have the work done elsewhere. That is, he is entitled in any case to the difference in value; he cannot increase this by the neglect of reasonable precautions; but on the other hand he is not under any obligation to take the burden off the defendant's shoulders, by executing the contract himself on better terms than the contract calls for.

§ 618. Damages upon prevention of performance or rescission by defendant. Where one engaged in the performance of a contract is wrongfully prevented by the employer from completing it, the measure of damages is the difference between the price agreed to be paid for the work, and what it would have cost the plaintiff to complete it.(a) Differently stated, the rule in such a case

(") Broumel v. Rayner, 68 Md. 47; Florence M. Co. v. Daggett, 135 Mass. 582; Hirt v. Hahn, 61 Mo. 496.

() Howe M. Co. v. Reber, 66 Ind. 498; Orr W. Co. v. Reno W. Co., 19 Nev. 60; New York v. Second Ave. R.R. Co., 102 N. Y. 572.

() Fletcher v. Gillespie, 3 Bing. 635; Lamoreaux v. Rolfe, 36 N. H. 33 (semble).

(4) Myers v. York & C. R.R. Co., 2 Curt. C. C. 28; Upstone v. Weir, 54 Cal. 124; Cox v. McLaughlin, 54 Cal. 605; Morgan v. Hefler, 68 Me. 131; Grand Rapids & B. C. R.R. Co. v. Van Dusen, 29 Mich. 431; Glaspie v. Glassow, 28 Minn. 158; Pevey v. S. & B. L. Co., 33 Minn. 45; Ennis v. Buckeye Pub. Co., 46 N. W. Rep. 314 (Minn.); Park v. Kitchen, 1 Mo. App. 357; Hale v. Hess, 46 N. W. Rep. 261 (Neb.); Durkee v. Mott, 8 Barb. 423; Danley v. Williams, 16 Wis. 581.

is recompense to the plaintiff for the part performance, and indemnity for his loss in respect to the part unexecuted. (*) The plaintiff is to be placed in the same condition he would have been in if he had been allowed to proceed without interference. (b)

A city, repudiating a contract with the defendant to do street cleaning, is liable for the difference between the value of the work to be done and the contract price.() The true measure is the value of the plaintiff's labor, and the profits he could have fairly derived from the labor he was prevented from performing. (4) In an action of assumpsit to recover for machines partly constructed under a contract between the plaintiff and defendant, but left unfinished, owing to the defendant's neglect to furnish necessary castings, and therefore not delivered, the measure of damages was not the value of the labor and material on these machines, but the plaintiff's damages for being prevented from completing them and receiving the agreed price-taking into account whatever the unfinished machines left on his hands were worth to him. (°) If, in such a case, the plaintiff is put to the same expense in time and money as if he had fully performed, the contract price of the whole work is the measure of damages.(1) But in the ordinary case the plaintiff cannot by showing readiness to perform or a tender of performance, recover the contract price. (*)

(") Upstone v. Weir, 54 Cal. 124; Friedlander v. Pugh, 43 Miss. 111; Polsley v. Anderson, 7 W. Va. 202.

(*) United States v. Smith, 94 U. S. 214; Elizabethtown & P. R.R. Co. v. Pottinger, 10 Bush 185.

(c) Devlin v. Mayor of New York, 63 N. Y. 8.

(4) Cunningham v. Dorsey, 6 Cal. 19.

(*) Allen v. Thrall, 36 Vt. 711.

(1) Wood v. Schettler, 23 Wis. 501.

(*) Lindley v. Dempsey, 45 Ind. 246; Hosmer v. Wilson, 7 Mich. 294.

§618. DAMAGES UPON PREVENTION OF PERFORMANCE. 271

*

So, in Kentucky it has been held, that a plaintiff contracting to do work for a stipulated price, and who is ready to perform his agreement, but is prevented by the other party, cannot recover the price named in the contract for the whole work, but only the actual damages sustained by him. And as "the amount of compensation. which the plaintiffs had recovered exceeded the value of the work they had done, and as, moreover, they did not attempt to prove any special loss or damage, they were not entitled to recover anything.” 1** So where the plaintiff was employed by the defendant to do certain work; after he began to do it, the order was countermanded by the defendant; but the plaintiff went on to complete the job, and insisted that he was entitled to recover for doing the whole and for the materials furnished, and so the Common Pleas held. But, on error, the judgment was reversed; the court saying that "in all such cases the just claims of the party employed are satisfied when he is fully recompensed for his part performance and indemnified for his loss in respect to the part left unexecuted; and to persist in accumulating a larger demand is not consistent with good faith toward his employer." The same rule applies where the consideration is paid by an employer in advance. The mechanic is not entitled in such case to retain the full price, even if the work is stopped by the default of his employer, but so much only as will compensate his actual damage.(*) In an action for such a breach of contract, evidence by the defendant to show that the fulfilment of the contract would have cost the plaintiff more than he was to receive

1 Chamberlin v. McCallister, 6 Dana Clark v. Marsiglia, 1 Denio 317; 352. See, also, Caldwell v. Reed, Lit- and see Durkee v. Mott, 8 Barb. 423. tell Sel. Cas. 366.

(*) Hood v. Raines, 19 Tex. 400.

from the defendant, is proper. (*) Where a contractor was to build a road, but was stopped when he had partially finished, the measure of damages was held to be the difference between the contract price and what it would have cost him to finish the road, but the defendant might show that the plaintiff would have been unable to finish it according to the agreement, and the jury were to take into consideration the fact that the plaintiff was relieved from this burden.(") But where the defendants wilfully embarrass and delay the plaintiffs, so that the contract which would have been profitable on the original estimates, has, in consequence of such conduct, become the reverse, the original principles and mode of estimate may, at the plaintiff's election, be departed from, and he may recover under a quantum meruit.(0) The recovery upon a quantum meruit will be considered later. (4)

§ 619. Entire contract price recoverable in some cases.In some cases the plaintiff may recover the whole contract price. A common case is that of a schoolmaster. If a scholar is removed from the school during the quarter the schoolmaster may recover the tuition fee for the whole quarter. (*) So upon an agreement to pay the plaintiff a certain amount for his legal services in a pending litigation he may recover the agreed amount, though the controversy is brought to an end by compromise.() Where it was agreed that the plaintiff should weigh all the grain carried over the defendant's road at a stipulated price, and the defendant allowed another to weigh grain, the plain

(^) Durkee v. Mott, 8 Barb. 423.

() Waco T. R.R. Co. v. Shirley, 45 Tex. 355.

(c) Merrill v. Ithaca & O. R.R. Co., 16 Wend. 586.

(4) § 654.

(*) Collins v. Price, 5 Bing. 132; Sprague v. Morgan, 7 Ala. 952.

() Hunt v. Test, 8 Ala. 713; Baldwin v. Bennett, 4 Cal. 392.